McMillan v Taylor - [2023] NSWCA 157

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: McMillan v Taylor [2023] NSWCA 157
Hearing dates: 3 July 2023
Date of orders: 6 July 2023
Decision date: 06 July 2023
Before: Payne JA
Decision:
(1) Set aside the applicants’ notice to produce dated 30 March 2023.
(2) Refuse the application under UCPR r 33.13 for access to the file.
(3) Costs of the application are costs in the cause.

Catchwords:
ENVIRONMENT AND PLANNING – Court of Appeal – practice and procedure – documents sought under UCPR r 33.13 – judicial review sought against decision of Commissioner – applicants not parties to decision challenged on review – where applicants seek documents in Land and Environment Court file in aid of judicial review – where respondents claim documents are confidential under Land and Environment Court Act s 34(11)
CIVIL PROCEDURE – case management – where documents sought would be inadmissible in review proceedings without respondents’ consent – where consent not forthcoming – inconsistent with Civil Procedure Act Pt 6 to allow production

Legislation Cited:
Civil Procedure Act2005 (NSW) Pt 6
Evidence Act 1995 (NSW) ss 131, 131A
Land and Environment Court Act 1979 (NSW) ss 34, 34AA
Uniform Civil Procedure Rules 2005 (NSW) rr 1.9, 33.13

Cases Cited:
Campbell Taylor v Council of the Municipality of Woollahra (No 2) [2022] NSWLEC 106
Campbell Taylor v Council of the Municipality of Woollahra [2022] NSWLEC 96
Taylor v Council of the Municipality of Woollahra [2022] NSWLEC 1658

Category: Procedural rulings
Parties:
Julie-Anne McMillan (first applicant)
Frances Ezra (second applicant)
Jack Ezra (third applicant)
Michael Hammond (fourth applicant)
Lisa Stephens (fifth applicant)
Campbell Taylor (first respondent)
Sarah Curtis (second respondent)
Land and Environment Court of NSW (third respondent)
Council of the Municipality of Woollahra (fourth respondent)
Representation:
Counsel:

D Robertson (applicants)
T Robertson; R White (first and second respondents)

Solicitors:
Colin Biggers & Paisley (applicants)
Project Lawyers (first and second respondent)
Crown Solicitor (third respondent, submitting appearance)
Wilshire Webb Staunton Beattie Lawyers (fourth respondent, submitting appearance)

File Number(s): 2023/67343
Publication restriction: Nil

JUDGMENT

PAYNE JA: This dispute was referred to me and heard in the referrals list on 3 July 2023. The applicants seek access to certain documents contained from a Land and Environment Court file.
The documents are sought in aid of judicial review proceedings brought in this Court, in which the applicants challenge a decision of a Land and Environment Court Commissioner. The judicial review proceedings are listed for hearing in this Court on 28 July 2023. The applicants have filed their written submissions and evidence in support of that application. The respondents’ submissions and materials were filed on 4 July 2023. The applicants’ reply submissions are due on 20 July 2023.
The applicants in the judicial review proceedings are Julie-Anne McMillan, Frances Ezra, Jack Ezra, Michael Hammond, Lisa Stephens, neighbouring home owners of the first and second respondents, Campbell Taylor and Sarah Curtis who own the property at the centre of this dispute and who oppose the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McMillan v Taylor

Details

AGLC: McMillan v Taylor [2023] NSWCA 157
Case: [2023] NSWCA 157
Decision Date: 06 July 2023

CaseChat Overview and Summary

In McMillan v Taylor, the applicants sought judicial review of a decision made by a Commissioner. The applicants were not parties to the original decision under review and sought access to documents held within the Land and Environment Court file pertaining to that decision, pursuant to rule 33.13 of the Uniform Civil Procedure Rules. The respondents contended that these documents were confidential under section 34(11) of the Land and Environment Court Act.

The central legal issue before the Court of Appeal was whether the applicants were entitled to access the Land and Environment Court file documents, despite not being parties to the original proceedings and in circumstances where the respondents claimed confidentiality and had not consented to their production. This also raised questions about the consistency of such production with the principles of case management under Part 6 of the Civil Procedure Act, particularly given that the documents would likely be inadmissible in the review proceedings without the respondents' consent.

Payne JA reasoned that allowing production of the documents under rule 33.13 would be inconsistent with the Civil Procedure Act, especially as the documents would be inadmissible in the judicial review proceedings without the respondents' consent, which had not been given. The Court therefore concluded that the applicants were not entitled to the documents.

Consequently, the Court of Appeal ordered that the applicants' notice to produce dated 30 March 2023 be set aside, and the application under UCPR rule 33.13 for access to the file be refused. The costs of the application were made costs in the cause.

Orders

Orders of the court

(1) Set aside the applicants’ notice to produce dated 30 March 2023.

(2) Refuse the application under UCPR r 33.13 for access to the file.

(3) Costs of the application are costs in the cause.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	McMillan v Taylor [2023] NSWCA 157
Hearing dates:	3 July 2023
Date of orders:	6 July 2023
Decision date:	06 July 2023
Before:	Payne JA
Decision:	(1) Set aside the applicants’ notice to produce dated 30 March 2023. (2) Refuse the application under UCPR r 33.13 for access to the file. (3) Costs of the application are costs in the cause.
Catchwords:	ENVIRONMENT AND PLANNING – Court of Appeal – practice and procedure – documents sought under UCPR r 33.13 – judicial review sought against decision of Commissioner – applicants not parties to decision challenged on review – where applicants seek documents in Land and Environment Court file in aid of judicial review – where respondents claim documents are confidential under Land and Environment Court Act s 34(11) CIVIL PROCEDURE – case management – where documents sought would be inadmissible in review proceedings without respondents’ consent – where consent not forthcoming – inconsistent with Civil Procedure Act Pt 6 to allow production
Legislation Cited:	Civil Procedure Act2005 (NSW) Pt 6 Evidence Act 1995 (NSW) ss 131, 131A Land and Environment Court Act 1979 (NSW) ss 34, 34AA Uniform Civil Procedure Rules 2005 (NSW) rr 1.9, 33.13
Cases Cited:	Campbell Taylor v Council of the Municipality of Woollahra (No 2) [2022] NSWLEC 106 Campbell Taylor v Council of the Municipality of Woollahra [2022] NSWLEC 96 Taylor v Council of the Municipality of Woollahra [2022] NSWLEC 1658
Category:	Procedural rulings
Parties:	Julie-Anne McMillan (first applicant) Frances Ezra (second applicant) Jack Ezra (third applicant) Michael Hammond (fourth applicant) Lisa Stephens (fifth applicant) Campbell Taylor (first respondent) Sarah Curtis (second respondent) Land and Environment Court of NSW (third respondent) Council of the Municipality of Woollahra (fourth respondent)
Representation:	Counsel: D Robertson (applicants) T Robertson; R White (first and second respondents) Solicitors: Colin Biggers & Paisley (applicants) Project Lawyers (first and second respondent) Crown Solicitor (third respondent, submitting appearance) Wilshire Webb Staunton Beattie Lawyers (fourth respondent, submitting appearance)
File Number(s):	2023/67343
Publication restriction:	Nil